Rights and Freedoms: A Canadian's Perspective

I have now been in Beijing for less than a week. Although I had a legal understanding of the difference between legal rights in China as compared to legal rights in Canada, the magnitude of the differences did not make itself felt until I turned on the TV and watched news documentary of the people in a village called Datong who were complaining of forced demolitions of their housing for what was felt by the city administration to be a required development project for the long term cultural benefit of the people of the town. The history appeared to be related to farmers giving up their land for urban style housing which in many cases did not provide long term property rights, nor did it protect them from the consequences of expropriation for urban development. This lack of certainty continued to affect those villagers who bought their property from others but for some reason, probably lack of education, did not secure the property ownership permit from the state with the result that they were in the process of losing their homes without compensation. In some cases, mortgage type debt was still owing, although there were no subsisting property rights. Compounding the problem was the fact that those contesting the demolition often had their children’s school catchment revoked with the result that the children were forced to stay home.

In Canada, we could not fathom an abrogation of our legal rights. There is no expropriation without compensation in Canadian law. People are protected by the Canadian Charter of Rights and Freedoms. When exposed to scenarios above, we must really pause for a moment to express gratitude to the situation we find ourselves, perhaps by shear luck.

For the benefit of my Chinese readers, I am going to quote from the Charter. We might take these rights for granted, but they took some 115 years to become enshrined in our constitution. What the concept of being “enshrined” means, is that no government, provincial or federal, can create a new law that infringes on any of the legal rights provided under the constitution, even if they have a complete majority. To do so would require an amendment of the constitution and agreement by a formula of consenting provinces, something very difficult to accomplish. In addition, under s. 24 of the Charter, the offensive law could be challenged by an application to Court, which in Canada is independent from Parliament or the Provincial Legislatures. In short, the government is answerable to the people.

The most relevant provisions are the following, although when faced with a prospect of unlawful detention, others suddenly become the most important as well.

When viewed within the context of legal rights, one can see the impact of lack of legal security presenting high on the list of a foreign citizen who does not enjoy such rights, even though they may be fortunate to be privileged within their own society. Governments change; privilege changes; connections change. Within that context underlies a certain overhanging insecurity that could easily weigh on a foreign national to seek financial and legal haven in Canada. We as Canadians cannot really comprehend that weight. I suggest that we bookmark the highlights below and read them from time to time as we pinch ourselves!

From the Canadian Charter of Rights and Freedoms.

2. Everyone has the following fundamental freedoms:

(a) freedom of conscience and religion;

(b) freedom of thought, belief, opinion and expression, including freedom of the press and other media of communication;

(c) freedom of peaceful assembly; and

(d) freedom of association.

6. (1) Every citizen of Canada has the right to enter, remain in and leave Canada.

Mobility of citizens

(2) Every citizen of Canada and every person who has the status of a permanent resident of Canada has the right

(a) to move to and take up residence in any province; and

(b) to pursue the gaining of a livelihood in any province.

Legal Rights

7. Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice

8. Everyone has the right to be secure against unreasonable search or seizure

9. Everyone has the right not to be arbitrarily detained or imprisoned.

10. Everyone has the right on arrest or detention

(a) to be informed promptly of the reasons therefor;

(b) to retain and instruct counsel without delay and to be informed of that right; and

(c) to have the validity of the detention determined by way of habeas corpus and to be released if the detention is not lawful.

11. Any person charged with an offence has the right

(a) to be informed without unreasonable delay of the specific offence;

(b) to be tried within a reasonable time;

(c) not to be compelled to be a witness in proceedings against that person in respect of the offence;

(d) to be presumed innocent until proven guilty according to law in a fair and public hearing by an independent and impartial tribunal;

(e) not to be denied reasonable bail without just cause;

(f) except in the case of an offence under military law tried before a military tribunal, to the benefit of trial by jury where the maximum punishment for the offence is imprisonment for five years or a more severe punishment;

(g) not to be found guilty on account of any act or omission unless, at the time of the act or omission, it constituted an offence under Canadian or international law or was criminal according to the general principles of law recognized by the community of nations;

(h) if finally acquitted of the offence, not to be tried for it again and, if finally found guilty and punished for the offence, not to be tried or punished for it again; and

(i) if found guilty of the offence and if the punishment for the offence has been varied between the time of commission and the time of sentencing, to the benefit of the lesser punishment.

12. Everyone has the right not to be subjected to any cruel and unusual treatment or punishment.

Equality Rights

15. (1) Every individual is equal before and under the law and has the right to the equal protection and equal benefit of the law without discrimination and,in particular, without discrimination based on race, national or ethnic origin, colour, religion, sex, age or mental or physical disability.

Enforcement

24. (1) Anyone whose rights or freedoms, as guaranteed by this Charter, have been infringed or denied may apply to a court of competent jurisdiction to obtain such remedy as the court considers appropriate and just in the circumstances.